Fifth Circuit Blog

Monday, August 31, 2009

Why the Departure/Variance Distinction Matters, Part Two

Several months ago I opined that the distinction the Fifth Circuit draws between Guidelines and non-Guidelines sentences "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review." Turns out that I couldn't have been more wrong. Exhibit 1: the Sixth Circuit's recent decision holding that, even post-Booker, a district court's discretionary refusal to depart is unreviewable on appeal, which is in accord with at least one unpublished Fifth Circuit decision. Exhibit 2: Gutierrez-Hernandez, in which the court reverses a sentence involving an upward departure, because the district court erroneously applied two of the Guidelines departure provisions.

What happened? Gutierrez pleaded guilty to illegal reentry.

The district court adopted the presentence report which preliminarily calculated a guideline sentence range of 10 to 16 months based on a total offense level of 10 and a criminal history category of III. The PSR then recommended two guideline departures. First, it pointed to a 2008 state handgun conviction for which Gutierrez was sentenced to 20 days imprisonment. The report suggested a departure under § 4A1.3, Inadequacy of Criminal History Category, because if the crime had been federally prosecuted, Gutierrez would have faced a greater sentence. Second, the PSR recommended a departure under § 5K2.0, Other Grounds for Departure, based on a 2003 state drug conviction, which, based on a police department offense report, the probation officer considered more serious than the guidelines accounted for. Gutierrez filed written objections to the upward departures in the PSR. In its statement of reasons, the district court repeated the language from the PSR and checked the boxes indicating that both departure provisions applied, thereby increasing Gutierrez’s offense level from 10 to 17. This resulted in a guidelines range of 30 to 37 months. Gutierrez was sentenced to 30 months.

On appeal, Gutierrez argued that the district court committed procedural error by misapplying the departure Guidelines. The court agreed. As for the criminal history departure, the court said that "[t]he prior state sentence may well under-represent the seriousness of Gutierrez’s criminal history[,]" but declined to "reach that question because the district court erred in determining the manner in which an adequate criminal history score is accounted for." The Guidelines require that a criminal history departure be made by adjusting the criminal history category, not—as the district court did—by adjusting the offense level. "A departure based on the inadequacy of criminal history is not made by adjusting the factor that accounts for the offense level of the instant crime."

A similar flaw underlay the district court's application of §5K2.0. The district court justified the departure on the ground of Gutierrez's prior Texas conviction for delivery of a controlled substance. That conviction did not trigger the "drug trafficking" enhancement under §2L1.2 because the Shepard-approved documents did not exclude the possibility that the conviction rested on an offer-to-sell, which at the time of sentencing in this case did not qualify as a drug-trafficking offense. Nevertheless, "the district court looked to the police report—a document it could not consider under the [Taylor-Shepard approach]—to determine that Gutierrez’s conduct involved an actual sale of cocaine, activity within the federal definition of a drug trafficking offense, and not merely an offer to sell, which is outside the definition. It determined that Gutierrez’s conduct would have triggered the enhancement if the indictment had described Gutierrez’s conduct in detail. It therefore applied the § 5K2.0 departure." That was error, said the court of appeals:

A district court cannot escape Taylor and Shepard by looking to a police report—which it could not earlier use to determine whether a prior conviction was a drug trafficking offense—to later justify a departure on the basis that the enhancement should have applied. Even more fundamentally, the 2003 conviction cannot support this departure because prior offenses serve as the basis for § 4A1.3 departures, which specifically focus on criminal history, and not § 5K2.0 departures, which consider circumstances of the instant offense. The provision identifies inter alia as relevant circumstances death, physical injury, psychological injury, abduction, and property damage, all pertinent to the offense at hand.

(emphasis added). Thus, the district court committed procedural error within the meaning of Gall, because "it gave no valid basis for the § 5K2.0 departure and misapplied the § 4A1.3 departure." More importantly, this error was fatal to the sentence:

The government urges that this Court can affirm the sentence as reasonable, under the second step of Gall, despite the procedural error in calculating the guideline sentencing range. If this case were in the Seventh or Ninth Circuit that argument might have traction. Those circuits, after United States v. Booker directed that the Guidelines were advisory, found that the guideline departures provisions had been “rendered obsolete” and “replaced by the requirement that judges impose a ‘reasonable’ sentence.”

This Circuit, however, has found otherwise. In a case vacating and remanding because the district court misapplied a guideline enhancement, we stated “nothing suggests that Booker injected a reasonableness standard into the question whether the district court properly interpreted and applied the Guidelines or that an appellate court no longer reviews a district court's interpretation and application of the Guidelines de novo.” Booker left in force 18 U.S.C. § 3742(f) which provides: “If the court of appeals determines that . . . the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate.” A district court must correctly apply the sentencing guidelines.

Of course, a court may impose a non-guidelines sentence based on the reasonableness factors in 18 U.S.C. § 3553(a). But one of those factors is the sentence established by the guidelines. The properly-calculated guideline sentencing range is the point from which the court may vary, a necessary factor in determining reasonableness. The Eleventh Circuit labels this the “consultation requirement,” and the Third Circuit recognizes that error in calculating the guideline range “may presage the sentence ultimately set.” Without the correct guideline range, the court varies from the wrong point.

Because the district court erred in the application of the departure provisions we VACATE Gutierrez’s sentence and REMAND for resentencing.

No doubt a key factor in this winning appeal is that Gutierrez submitted written objections to the PSR's call for an upward departure, thus avoiding plain error review. And you should always have the opportunity to do that. Remember that Fed. R. Crim. P. 32(h) still requires advance notice that the court is contemplating a departure (although not for variances).

There's good and bad in this opinion. The good is that a suspended sentence isn't a "sentence imposed" for purposes of the 12- and 16-level drug-trafficking enhancements in guideline §2L1.2. The bad is that the panel continues a recent trend of ever-stricter plain error review, and in this case employs an approach to "plainness" that appears contrary to Supreme Court and Fifth Circuit case law.

So what happened? In 1994, Rodriguez was convicted of delivery of marijuana in Texas state court. He was sentenced to five years' imprisonment, which was suspended in favor of five years' probation, and served no part of his sentence in jail. When Rodriguez later illegally reentered the United States, the Texas conviction formed the basis for a 12-level enhancement under guideline §2L1.2(b)(1)(B), as "a conviction for a felony drug-trafficking offense for which the sentence imposed was 13 months or less[.]" The district court sentenced Rodriguez to 46 months' imprisonment, which was the bottom of the advisory Guidelines range.

On appeal, Rodriguez argued that the prior Texas drug conviction "cannot be used to enhance the [illegal reentry] sentence, because the [drug] sentence was entirely suspended." Because Rodriguez did not raise this argument in the district court, the court of appeals reviewed for plain error.

First, the good news. The court found error:

We must first decide whether there was error. The court enhanced under § 2L1.2(b)(1)(B), which increases a sentence by twelve levels “[i]f the defendant previously was deported, or unlawfully remained in the United States, after . . . a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less.” Because the sentence was entirely suspended in favor of probation, we must determine whether it is a “sentence imposed” for purposes of § 2L1.2.

"(1) The term ‘sentence of imprisonment’ means a sentence of incarceration and refers to the maximum sentence imposed.

"(2) If a part of a sentence of imprisonment was suspended, ‘sentence of imprisonment’ refers only to the portion that was not suspended."

Under subsection (2), therefore, the suspended portion of a sentence is not part of a “sentence of imprisonment.” Thus, if all of Rodriguez-Parra’s sentence was suspended, there is no remaining portion of the sentence that could refer to “sentence of imprisonment.” Application note two confirms this: “To qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence.” U.S.S.G. § 4A1.2 Application Note 2 (emphasis added).

There is caselaw that supports this conclusion. In United States v. Brown, 54 F.3d 234, 240 (5th Cir. 1995), we examined what constituted a “sentence of imprisonment” under § 4A1.2. That term “require[s] that . . . some time actually be served on the sentence.” Id. The only other court of appeals to examine this issue after the 2003 guideline amendments reached the same conclusion. Because all of Rodriguez-Parra’s sentence was suspended, his prior sentence did not meet the requirements for “sentence imposed” under the guidelines, so there was error under the first prong of the plain-error rubric.

As you can see, the same reasoning would apply to a sentence of straight probation, although probably not if any jail time was imposed as a condition of probation.

Now for the bad news: the court found that the error was not plain, and appears to have departed from controlling Supreme Court and Fifth Circuit precedent in reaching that conclusion. The court said, "There is no plain error if the legal landscape at the time showed the issue was disputed, even if, as here, the district court turns out to have been wrong. United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009)." (emphasis added).

There are two problems with that statement. First, it's contrary to Supreme Court precedent. In Johnson v. United States, the Court held that, "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be 'plain' at the time of appellate consideration." 520 U.S. 461, 468 (1997) (emphasis added). And, consistent with Johnson, the Fifth Circuit has held that "[t]he plain or obvious nature of the error is determined by the law as it exists at the time of appellate review, rather than the time of the district court's ruling." United States v. Davis, 487 F.3d 282, 284 (5th Cir. 2007). Rodriguez-Parra does not discuss or attempt to distinguish these cases, or others that have followed Johnson. Instead, it just cites Ellis, which brings us to the second problem.

Ellis does not say that plainness is assessed by reference to the state of the law at the time of sentencing. In fact, the court in Ellis never even decided whether there was error in the first place, because it concluded that the question at issue was so close that no error could be plain: "even now after full briefing and oral argument the error is not plain or obvious, indeed it is most uncertain whether there was any error at all." Here, on the other hand, the court found easily found error.

Rodriguez-Parra goes on to treat as controlling a Fifth Circuit case that found no plain error on the same issue presented here: United States v. Garcia-Rodriguez, 415 F.3d 452 (5th Cir. 2005).

In Garcia-Rodriguez, the defendant had been convicted in California on a drug offense and sentenced to three years’ probation. Id. The district court used the earlier conviction to enhance, despite the fact that the defendant had not been imprisoned as a result of the earlier conviction. Id. Focusing on the same “sentence imposed” language from § 2L1.2 that we are currently reviewing, we held that the enhancement was not plain error. Id. at 456.

Garcia-Rodriguez relied on the fact that, "at the time of . . . sentencing[,] . . . [t]wo courts of appeals had interpreted the relevant provision in the same manner as the district court, and this court's law was unsettled." As Rodriguez-Parra describes it, "the lack of Fifth Circuit controlling authority on the issue meant that there was not plain error. [Garcia-Rodriguez, 415 F.3d] at 456. The presence of Garcia-Rodriguez as binding precedent means, therefore, that the resolution of Rodriguez-Parra’s sentencing issue is less than obvious." Rodriguez-Parra goes on to say that its finding of error

is reached . . . only by a careful parsing of all the relevant authorities, including the sentencing guidelines and applicable decisions. “[T]o satisfy the second prong of plain error inquiry, ‘the legal error must be clear or obvious, rather than subject to reasonable [dispute].’” Ellis, 564 F.3d at 377-78 (quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)). Here the result is reached only by traversing a somewhat tortuous path.

But that's an odd description of the court's analysis of the issue, which is reproduced in full up above. The court only needed three relatively brief paragraphs of analysis to conclude that there was error. There was no indication here, as in Ellis, that the legal error was subject to reasonable dispute; indeed, the court apparently saw it as an easy question with a straightforward answer. And it's hard to say that that a simple cross-reference to another guideline amounts to a "somewhat tortuous path" (it's nothing compared to §2L1.2(b)(1)(C)'s incorporation of Title 8's "aggravated felony" definition, for example). Moreover, to the extent that the court is suggesting that error cannot, by definition, be "plain" whenever there is a lack of controlling case law on the question, that seems wrong, too. Especially if the relevant guideline provisions are clear, as they seem to be here.

Of course, this decision isn't all that surprising in light of what seems to be a trend towards a more stringent plain error review. There's that cite to Puckett, for example. There's also this:

That [tortuous] path . . . would have been more straight and level had Rodriguez-Parra made his objection in the district court, thus allowing each side to present its arguments on the question now at hand. This is the very point of the plain-error standard—it “serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance.” [Ellis] at 378.

These concerns would carry more force if the question at issue were a closer one, but—again—that evidently wasn't the case here. They also sound more relevant to the third and fourth prongs of plain error review, not the second.

Given Rodriguez-Parra's apparent departure from established plain-error principles, this case would seem to be a good candidate for panel or en banc rehearing. We'll see what happens.

If the court imposes a term of imprisonment on revocation of supervised release, may it order that term to run consecutively to any other sentence, even though the sentence for the original offense—as required by the terms of the plea agreement—ran concurrently with an already-imposed state sentence? That question, and others concerning plain error and reasonableness review (including a circuit split!), are answered in Whitelaw.

The lengthy backstory:

Alan Whitelaw was convicted of theft of money in an amount exceeding $200,000 in state court and was sentenced to 60 years of imprisonment. Whitelaw subsequently pleaded guilty to federal bank fraud charges in the Southern District of Texas. While the same type of fraudulent conduct was the basis for both of Whitelaw’s convictions, the federal and state convictions involved different specific conduct, dates, and victims.

Although Whitelaw pleaded guilty to the federal charge without a written plea agreement, the Government made an oral agreement at rearraignment that it would recommend that Whitelaw’s sentence run concurrently with his state court sentence. The district court accepted the agreement as a plea agreement under FED. R. CRIM. P. 11(c)(1)(C), ruling that Whitelaw would be allowed to withdraw his guilty plea if it did not order that his sentence run concurrently with his state court sentence. The district court sentenced Whitelaw to 46 months of imprisonment, the sentence to run concurrently with his state court sentence, and five years of supervised release.

For reasons not explained in the opinion, Whitelaw was released from state prison after serving just five years of his sentence. He then began serving his federal supervised release term.

A little over three years later, Whitelaw was arrested on a revocation violation warrant. The Government then filed two motions to revoke Whitelaw's supervised release, the latter of which alleged six violations, including "committing the felony offense of theft of copper wire valued in excess of $1,000 or possession of stolen copper wire valued in excess of $1,000," lying to his probation officer about it (both orally and with forged documents), and technical violations.

After a hearing, the court found all but one of the alleged violations (a failure to report) to be true. Whitelaw requested a sentence at the low end of the advisory 4- to 10-month Guidelines range. The court instead sentenced him to 36 months—the statutory maximum—"and ordered that sentence run consecutively to any other state or federal sentence."

Following the revocation of his supervised release, Whitelaw filed a pro se motion that included a claim that he should be allowed to withdraw his guilty plea because his sentence upon the revocation of supervised release was not ordered to run concurrently with any state court sentence he received. The district court struck the motion because Whitelaw was represented by counsel and, therefore, not entitled to make pro se filings. In the alternative, the district court denied the motion on its merits.

Which finally gets us to the issues on appeal . . .

Standard of ReviewFor at least the thirdtime, the court declined to decide whether revocation sentences are reviewed for reasonableness or plain unreasonableness, because all the issues Whitelaw raised were subject to plain error review:

"Whitelaw did not raise any of the specific claims of procedural error that he argues in this appeal when he was before the district court for sentencing[,]" so plain error review for those (failure to consider the policy statements in Chapter 7 of the Guidelines Manual, and an inadequate statement of reasons for the sentence).

Whitelaw's motion challenging the consecutiveness order "was stricken by the district court because Whitelaw was represented by counsel. Accordingly, Whitelaw did not properly raise this claim of specific legal error below, and this court reviews it for plain error only."

"Whitelaw also did not object to the substantive reasonableness of the sentence below. Whitelaw’s contest of the revocation charges and request for a sentence at the low end of the guidelines range are insufficient to preserve the substantive reasonableness of the sentence for review." See Peltier. (But don't forget that circuit split.)

No Error In Running Sentence Consecutive to Any Other Sentence, Notwithstanding Plea Agreement on Original OffenseWhitelaw challenged the consecutive order on his revocation sentence on two grounds, both of which the court rejected. First, he argued that the district court didn't indicate it realized that it could order the sentence to run concurrently with any other sentence. While the district court didn't specifically acknowledge it's discretion in the matter, the Government asked for the revocation sentence to run consecutively, and the district court express doubt that it could do that. "In the absence of evidence to the contrary, this court assumes that the district court knows the law and applies it correctly[,]" so no plain error.

Second, Whitelaw argued that the terms of his original plea agreement required any revocation sentence to run concurrently to any other sentence, as was the case with his original sentence. Not so, said the court. The rearraignment transcript wasn't in the record, but the PSR

describes the plea agreement as requiring that Whitelaw’s sentence run concurrently with the state court sentence Whitelaw was then serving. We see no indication that the plea agreement applied to any sentence other than for the crime upon which he was charged. The judgment of conviction provides only that Whitelaw’s sentence of imprisonment would run concurrently with the state court sentence that Whitelaw was then serving; it did not impose any restrictions upon possible sentences that could be imposed if Whitelaw’s later term of supervised release was revoked.

(emphasis added). Is that right? It may be the case that the plea agreement didn't purport to cover what would happen in the event of a revocation of supervised release (and given the lack of a written plea agreement or a rearraignment transcript, it's impossible to say the court's wrong about that). But to the extent that the court is suggesting that a revocation sentence is for a crime other than the one for which a defendant was originally convicted, the court applies a mistaken understanding of revocation. As the Supreme Court explained in Johnson v. United States, a post-revocation sanction is an additional punishment for the original offense, not a punishment for the violation of the terms of release. 529 U.S. 694, 699–701 (2000). Treating post-revocation sanctions as punishment for violations of conditions of supervised release would raise "serious constitutional questions," given that "the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt." Id. at 700. The court doesn't address Johnson here, but it's something to keep in mind if you find yourself with a case similar to Whitelaw.

Whitelaw Failed to Show that the District Court Failed to Consider the Guidelines' Revocation Policy StatementsWhitelaw argued on appeal that the district court failed to consider the Chapter 7 policy statements. But the court of appeals held that he failed to show that, because 1) the district court correctly calculated the advisory revocation range and referred to it before imposing sentence, 2) "[d]efense counsel referred to that range in its argument[,]" and 3) the Government also referred to that range in its motions to revoke, and "made arguments for an above range sentence related to the § 3553(a) factors[.]"

District Court Plainly Erred in Failing to State Reasons for the Sentence, but That Error Did Not Affect Whitelaw's Substantial Rights Because the Record Reveals the ReasonsGiven that the district court imposed a sentence that was more than three times the high end of the advisory Guidelines range, Rita required some explanation. The district court gave no reasons. That was clear and obvious error. But did the error affect Whitelaw's substantial rights? And how does the court of appeals assess that?

As it turns out, up until now the Fifth Circuit "ha[d] not yet applied plain error review to a district court’s failure to state reasons for an above guideline sentence." (emphasis added). As you'll recall, Mondragon-Santiago reviewed such an error in the context of a within-Guidelines sentence. It held that that the defendant must "show that the error actually did make a difference [in the sentence]: if it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses." Mondragon-Santiago rejected the approach of "other circuits [that] have relaxed this requirement in the sentencing context[.]"

But given that Mondragon-Santiago involved a within-Guidelines sentence, Whitelaw had to decide whether that approach to the third plain-error prong also applies to review of above-Guidelines sentences. To that end, Whitelaw canvassed what appears to be a circuit split on the question:

In cases involving above guidelines sentences, the D.C. Circuit and the Second Circuit have relaxed the showing required by a defendant to demonstrate that the error affected the defendant’s substantial rights. These courts reason that the absence of a statement of reasons affects the appellate court’s ability to perform a meaningful review of the sentence. Both circuits also conclude that the failure to state reasons undermines “the public reputation of judicial proceedings” because the statement of reasons indicates to the public that the sentencing judge has thoughtfully discharged his responsibilities and demonstrates that the judgment is not arbitrary. [So has the Sixth Circuit.]

Other circuits have declined to follow that lead. The Tenth Circuit affirmed a below guidelines sentence in which the government argued procedural error for failure of the sentencing court to cite reasons for a downward departure. The Tenth Circuit refused to find that the error affected the government’s substantial rights because, applying traditional plain error analysis, the government could not explain how a more detailed reasoning process might have led the court to select a higher sentence. In other words, the government could not show that the error made a difference in the sentencing outcome. The court refused to presume prejudice.

(cites omitted). Ultimately, Whitelaw found it unnecessary to take sides on this question, because "our review of the record reveals the reasons for Whitelaw’s sentence, even if not explicitly stated by the district court." The revocation hearing was extensive. The district court heard evidence, and both parties presented sentencing arguments. "The government then urged the court to sentence Whitelaw to 36 months in prison (the statutory maximum) for the five reasons set forth in its motion to revoke and that the sentence be consecutive to any other sentence. The district court then granted the government’s motion and sentenced Whitelaw to the government’s recommended 36 month term of imprisonment." (By the way, a portion of the Government's motion is reproduced in the opinion, and is predictably purple.) The court then reaches this troubling conclusion:

We have no trouble concluding that by granting the government’s Motion to Revoke and sentencing Whitelaw to the term of imprisonment recommended and supported in that motion, the district court implicitly adopted the government’s rationale for that sentence as set forth in the motion. These reasons thoroughly explain Whitelaw’s sentence. The factual basis supporting them is implicit in the district court’s findings that most of the revocation charges were true. By reviewing the record of the sentencing proceedings in this case, we are able to conduct a meaningful appellate review. Accordingly, the district court’s failure to state these reasons on the record has not prejudiced Whitelaw.

Will that give prosecutors an incentive to paper the case with overheated arguments for a stiff revocation sentence, in hopes that the district court won't state reasons of its own? Perhaps. If possible, you might consider trying to blunt the effect of such pleadings with your own written submission (which may or may not be possible, depending on whether the releasee challenges the alleged violations, and on whether the court will allow time for written arguments before deciding on a disposition). Of course, it's also a good reason to object to procedural errors at the hearing so you're not stuck with plain error review in the first place.

On Review for Substantive Reasonableness, Whitelaw's Sentence was not Plain ErrorAfter all that, the court's resolution of Whitelaw's substantive reasonableness challenge was pretty brief. The court simply said that because the sentence did not exceed the statutory maximum, it wasn't plain error, citing other Fifth Circuit opinions that also so held. Is the court relying on a broader principle that a sentence within the statutory range can never be plain error? If so, that sounds questionable. Hopefully, the court is just saying that, as a descriptive matter, such sentences will have a very hard time satisfying all four plain error prongs. And given the poor track record of preserved substantive reasonableness challenges, that's probably true.

Monday, August 24, 2009

Prosecutor's Misleading Rebuttal Argument at Trial Not Plain Error

United States v. Vargas, No. 08-40704 (5th Cir. Aug. 21, 2009) (Higginbotham, Smith, Southwick)If a prosecutor successfully moves in limine to exclude from evidence an exculpatory statement that the defendant made at the time of his arrest, may she nevertheless strongly imply in the rebuttal portion of her closing argument that the defendant did not try to exculpate himself when he was arrested? No. Is it obviously wrong for her to do so? Surprisingly, no. At least not in this case.

The scenario is familiar: tractor-trailer pulls up to an interior Border Patrol checkpoint, agents find a boat-load of marijuana concealed among legitimate cargo, issue at trial is whether the driver (Vargas) knew of the marijuana. Of course, there was circumstantial evidence that Vargas knew he was running a load. But there was also this: when Vargas was arrested at the checkpoint, "[h]e waived Miranda and, in response to questioning, stated that he had been working for P&M Trucking for seven months and that he had 'just hooked up the trailer and left.' He also said 'I didn’t know there was any drugs inside the trailer.'"

Prior to trial, the court granted the Government's motion to keep out Vargas's statement, unless he testified. Vargas did not testify. In closing argument, his lawyer naturally argued that the owner of the trucking company (Garza) used Vargas as an unwitting dupe to haul the marijuana. In rebuttal, the prosecutor argued:

And what he chose to tell the Border Patrol, being charged with possession of marijuana, over a million dollars, a million dollars there at the checkpoint, it gets more valuable as it goes north, all he chose to say to them when he was asked some questions is saying, “I work for P&M, I’ve been there for seven or eight months, I picked it up and I was just going to drop it off.”

* * *

It seems like he wants you to believe just that, that he did pick it up at P&M. Because he didn’t say anything differently to the Border Patrol at that time, didn’t say he went to Enrique’s [Garza], “I got it from him.” He never said that.

* * *

Everything he did on the night of his arrest says to you the defendant knew, because you never heard, “Enrique Garza did it, let me tell you about him.” Wouldn’t that be reasonable? Wouldn’t that be the reasonable thing to say at that time?

The defense did not object. The jury found Vargas guilty.

Vargas pressed a prosecutorial misconduct claim on appeal, which of course was subject to plain error review.

On the threshold question—was there error?—the court rejected the Government's argument that it was simply responding to a defense theory Vargas brought up for the first time in his closing argument. "[A] prosecutor may not argue the absence of evidence she well knew existed." Here,

[t]he prosecutor lingered on the point, making specific statements that could be read as implying Vargas made no exculpatory statements, when, in fact, he had. . . . In a case where the single contested issue was Vargas’ knowledge, and in which the prosecutor used a motion in limine to have Vargas’ exculpatory statement excluded from evidence, the high ground would have been to steer clear of arguments that infer no such statement was made—especially when that argument was made only after the defense had had its last opportunity to exercise the right to introduce the statement should it become relevant. At best, if not ill-advised effort, it was a hazardous undertaking.

Nonetheless, the court surprisingly concluded that the error was not clear or obvious:

There are two possible readings of the prosecution’s closing. Alone, the argument suggested no exculpatory statement was made, when the government knew it had. But in context of the argument, it answered the defense’s theory of the case first raised in its closing. In light of these two possible readings, the remarks do not rise to the level of obvious error, evidenced in part by the absence of an objection by defense counsel whose competence is evident in this record.

I disagree. As the court stated earlier in the opinion, "a prosecutor may not argue the absence of evidence she well knew existed." Just because the prosecutor does so in the course of an otherwise permissible rebuttal doesn't make the error any less clear. It was perfectly permissible for the prosecutor to address the evidentiary support, or lack thereof, for the defense's theory of the case; it was not permissible for her to mislead the jury by implying that Vargas never exculpated himself when she not only knew full well that he did, but actively sought to keep that statement from the jury in the first place. (It is also troubling that the court cited "the absence of an objection by defense counsel whose competence is evident in this record" as support for its conclusion.)

Even though Vargas was poured out for failing to satisfy the second plain error prong, the court nevertheless went on to address the third, which was whether the prosecutor's improper remarks affected Vargas's substantial rights, "here the fundamental fairness of the trial." And the court held that they did not, because "[t]he statements were limited to a few moments of the trial, albeit in closing argument, and the jury had ample evidence on which to convict Vargas." "Perhaps the remarks made the trial imperfect," the court said, "but it was fair."

This, too, is a questionable holding. Regardless of the weight of the evidence against the defendant, it's hard to see how a trial can be fair when the prosecutor successfully keeps exculpatory evidence away from the jury, and then implies—when the defense no longer has any opportunity to respond—that it doesn't exist.

Tuesday, August 18, 2009

Crime-Fighting Armadillo

The Wall Street Journal reports on an innovative approach to law enforcement:

PEORIA, Ill. -- This industrial city, hard hit by the recession, has found a new, low-budget way to fight crime: Park an unmanned, former Brink's truck bristling with video cameras in front of the dwellings of troublemakers.

Police here call it the Armadillo. They say it has restored quiet to some formerly rowdy streets. Neighbors' calls for help have dropped sharply. About half of the truck's targets have fled the neighborhood.

"The truck is meant to be obnoxious and to cause shame," says Peoria Police Chief Steven Settingsgaard.

What's the Fifth Circuit angle, you ask? Well, there's lots of armadillos in Texas, albeit of the nine-banded kind.

Monday, August 17, 2009

New Blog on Snitching

This blog does a bunch of things. It discusses how snitching works--on paper and in reality. It provides resources to individuals, lawyers, law enforcment, and legislators . . . . It covers current events and news stories. And it lets you share your own experiences by posting a "Testimonial" . . . .

Enhancement for Committing an Offense While On Release Applies to One Convicted of Failing to Appear

If you get convicted of failing to report for service of a sentence, can you also receive a sentence enhancement for committing an offense while on release, even though the only way you could have failed to appear was because you were on release in the first place? Dison answers that vexing question—which has divided courts—"yes." Fortunately, the enhancement does not authorize a sentence in excess of the maximum for the failure-to-appear offense, as the court explains in a short jaunt through Apprendi-land.

Okay, from the top: Let's say that, like Dison, you fail to appear for service of a sentence. Three provisions become relevant:

18 U.S.C. § 3146(a)(2) makes it a crime to fail to report for service of sentence. The punishment varies, depending on the nature of the offense for which the sentence was imposed, but in all cases "shall be consecutive to the sentence of imprisonment for any other offense." § 3146(b)(2).

18 U.S.C. § 3147 provides that "[a] person convicted of an offense while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense, to" up to 10 years if the offense is a felony, or up to 1 year if the offense is a misdemeanor. Section 3147 further provides that "[a] term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment."

U.S.S.G. §3C1.3 calls for a 3-level enhancement "[i]f a statutory sentencing enhancement under 18 U.S.C. § 3147 applies. The guideline also directs the sentencing court to "divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement[,]" in order to comply with § 3147's consecutiveness requirement.

Dison was convicted of a § 3146 failure-to-appear, subject to a five-year statutory maximum. The PSR applied the 3-level enhancement under §3C1.3 when calculating the Guidelines range. The district court overruled Dison's objection to the enhancement, and imposed a sentence of 21 months' imprisonment—the bottom of the 21- to 27-month range—apportioning 5 of those months to the § 3147 enhancement.

On appeal, Dison argued "that the § 3147 enhancement should not apply when the sole offense committed while on release is failure to appear, which by definition can only be committed while on release. She argues that the § 3147 enhancement as applied to a § 3146 offense (1) is ambiguous and should thus be interpreted in favor of lenity, and (2) constitutes improper double-counting, thereby violating the Double Jeopardy Clause."

The court rejected the lenity argument, finding the statutes' language plain and unambiguous, and not productive of an absurd result. According to the opinion, three other circuits have also so held.

Is that right? Is there really nothing absurd about requiring not only that a sentence for failing to report be consecutive to the sentence for the earlier offense, but also that an additional sentence be imposed consecutive to the failure-to-appear sentence? If not absurd, it's at least a bizarre way to structure the sentence for a failure-to-appear.

As for the Double Jeopardy issue, the court said:

Dison contends that even if the § 3147 enhancement could be read as extending to the § 3146 offense of failure to appear, the enhancement as applied to her violates the Fifth Amendment’s Double Jeopardy Clause because it “exposes Ms. Dison to multiple punishments for the same offense.” It is true that Dison is subject to the § 3147 enhancement for having failed to appear while on release even though she committed that offense in the only manner possible, viz., while on release. Yet, assuming arguendo that the enhancement subjects Dison to double counting, “such an application would not necessarily violate the double jeopardy clause.” “The [Supreme] Court has . . . defined the nature of double jeopardy protection by stating: ‘[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’”

Here, there was a single prosecution for Dison’s offense of failure to appear. And, we know that cumulative punishment, to the extent any exists, is within the intent of Congress because the “Guidelines are explicit when double counting is forbidden.” Under the doctrine of inclusio unius est exclusio alterius, “only if the guideline in question expressly forbids double counting, would such double counting be impermissible.” Section 3147 contains no prohibition against cumulative punishment. We presume, therefore, that Congress intended to impose it; there is thus no double jeopardy violation.

We continue briefly to emphasize that the instant case is not one in which we must determine whether Congress intended to permit a defendant to be convicted of, and sentenced for, two offenses that penalize the same underlying conduct. If that were the case, we would require a “clear and definite legislative directive” indicating that Congress intended both punishments. Instead, our precedent establishes that § 3147 provides only a sentence enhancement and does not constitute an independent offense or an element thereof. This analysis is consistent with the Supreme Court’s decision in Apprendi, which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi is inapplicable to “a fact used in sentencing that does not increase a penalty beyond the statutory maximum.” And, regardless of the fact that § 3147 calls for punishment “in addition to the sentence prescribed” for the underlying offense, the § 3147 enhancement can never result in a sentence in excess of the statutory maximum prescribed for the offense committed while on release, here failure to appear. Our foregoing analysis of the subject sentencing scheme therefore stands without the need for any additional scrutiny.

I'm not sure the Apprendi issue is as simple as the court makes it out to be. (Anyone with thoughts on that question is welcome to leave a comment.) Nevertheless, the important point to take away is that, according to Dison, § 3147 does not authorize a sentence in excess of the maximum for the offense committed while on release.

Monday, August 10, 2009

Nice Opinion on Error Preservation and Harm In Appeal From Erroneous Guidelines Calculation

You'll want to keep this opinion handy, in case you get into a battle over whether an objection to a sentencing error was properly preserved in the district court. It's also a nice go-to for harm arguments when the district court miscalculated the advisory Guidelines range.

As the court recounted the facts,

Police officers responded to a domestic disturbance call at Neal’s apartment. Upon arrival, Neal’s estranged girlfriend informed the officers that Neal was in possession of illegal drugs. Neal consented to a search of his apartment, and the officers discovered (1) two firearms in the bedroom closet and (2) undetermined amounts of cocaine, ecstacy, hydrocodone, and marijuana elsewhere in the apartment.

After pleading guilty in state court to possession of hydrocodone, Neal pleaded guilty in federal court to being a felon in possession of firearms. Enter the probation officer, who contended that Neal was subject to a heightened offense level under the armed career criminal guideline (§4B1.4(b)(3)(A), (c)(2)), on the ground that “the defendant possessed the firearms along with controlled substances, therefore the defendant is deemed to have used or possessed the firearms in connection with a crime of violence or a controlled substance offense.” Neal objected, but the district court adopted the probation officer's recommended calculations and imposed a sentence at the bottom of the resulting 188- to 235-month Guidelines range.

Neal appealed. As is often the case, the court had to first resolve a dispute over whether Neal had preserved error. The discussion is important not only because it finds Neal's relatively spare objection sufficient to preserve error, but also because of some great language addressing the effect of a district court's misunderstanding of, or failure to respond to, an objection.

To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000). Here, Neal raised the following complaint in his written objections to the PSR:

"2. Page 4 ¶ 20, defendant objects to the Probation Office’s finding that, pursuant to U.S.S.G. § 4B1.4(A), defendant should be considered an armed career criminal in that he used or possessed a firearm or ammunition in connection with a crime of violence or controlled substance offense as defined in U.S.S.G. § 4B1.2(A). Weapons found in Mr. Neal’s residence were not used nor were they possessed in connection with a crime of violence or controlled substance offense."

The government contends that this objection was too general to preserve error, as Neal never specifically alleged that simple possession of drugs fell outside the Guidelines definition of a “controlled substance offense.”

The government notes that the district court construed Neal’s written response as objecting solely to the proximity of the drugs, i.e., to whether the firearms found in the bedroom closet were possessed “in connection with” the drugs found elsewhere in the apartment. The government faults Neal for failing to clarify the basis of his objection after the district court’s initial response.

While Neal could certainly have been more clear and more persistent in raising an objection based on the definition of “controlled substance offense,” we conclude that his actions were sufficient to preserve error. For preservation purposes, we have never required a defendant to reiterate an objection simply because the trial court misconstrues or fails to respond to the original. The central inquiry is the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief. See Medina-Anicacio, 325 F.3d at 642 (“[O]nce a party raises an objection in writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless preserved for appeal.”).

Here, it is sufficiently clear that Neal objected to his possession conviction being deemed a “controlled substance offense.” The second paragraph of Neal’s written response to the PSR, set forth supra, specifically objects to the PSR’s finding that the firearms were possessed in connection with a “controlled substance offense,” and cites to the relevant definitions section of the Guidelines for support. While the district court may have subsequently focused its analysis on the spatial relationship between the drugs and the firearms, we note that Neal raised this “proximity” objection explicitly and separately in the first paragraph of his written response. As such, it is reasonable to infer that the second paragraph was intended to raise a different objection, one based on the definition of a “controlled substance offense.” Moreover, during the sentencing hearing, Neal emphasized that his “predicate offense” was simple possession of a small amount of hydrocodone. While this statement standing alone may have been insufficient, we conclude that the combination of Neal’s oral and written objections was sufficient to preserve error in this case. See Ocana, 204 F.3d at 589.

Thus, de novo review of the Guidelines calculation, which was an easy one. A "controlled substance offense," for purposes of the armed career criminal guideline, does not include simple possession. There was no finding or evidence that Neal possessed the drugs with intent to distribute, dispense, etc., so application of the enhanced offense level and criminal history category was erroneous.

But was there harm? Yes. Without the enhancement, Neal's advisory Guideline range would have been 180 to 188 months, rather than the 188- to 235-month range calculated by the district court.

Where, as here, the district court commits a significant procedural error such as miscalculating the Guidelines range, we must vacate the sentence unless the error did not affect the selection of the sentence imposed. Delgado-Martinez, 564 F.3d at 753. The proponent of the sentence has the burden of establishing that the error was harmless. Id. Here, the government notes that Neal’s 188-month sentence falls within both the correctly and incorrectly calculated ranges. However, “[w]hile the fact that the actual sentence falls within the properly calculated Guidelines range may at times be relevant to the harmless-error inquiry, it is not dispositive.” Id. Based on our independent review of the record, we find no indication that the district court would have imposed the same sentence regardless of the Guidelines range. Accordingly, we cannot conclude that error was harmless and must remand. See id. at 754.

In 2002, a gentleman clad in a work shirt, hard hat, and sunglasses strolled into a bank in Morton, Mississippi, presented a demand note to a teller, and departed with $6,600. Minutes later, police found the shirt, hat, and glasses discarded near the bank. Fasano was later charged and convicted of the robbery. The trial evidence consisted of, among other things, the testimony of four eyewitnesses identifying Fasano as the robber, and Fasano's fingerprints on the demand note.

After the Fifth Circuit affirmed Fasano's conviction over a sufficiency challenge, he moved the district court to order DNA testing of the shirt, hat, and sunglasses under the Innocence Protection Act of 2004 (the relevant portion of which is found in 18 U.S.C. § 3600). The district court denied the motion. Fasano appealed.

Only two of the ten requirements for testing were contested: 1) the chain-of-custody requirements of § 3600(a)(4), and 2) the requirement that Fasano "establish that DNA testing would produce a 'reasonable probability' that he did not commit the robbery, as required by § 3600(a)(8)." The court of appeals reviwed the district court's construction of those two requirements de novo, and the factual findings for clear error.

The chain-of-custody requirement of subsection (a)(4) actually has two components: the evidence must 1) be in the Government's possession and subject to a chain of custody, and 2) "retained under conditions sufficient to ensure that such evidence has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed DNA testing." As to the first component, the court declined to

read the statute to impose a more exacting standard for a showing of the chain of custody in a proceeding under the Innocence Act than would be demanded in a trial itself [under FRE 901]. Indeed there is argument with some purchase, that the trial standard is itself too exacting for an inquiry into whether tests should be ordered. This is because much of the uncertainty inherent in this predictive exercise can be dispelled only by the tests a petitioner is seeking. Looking through the text and structure of the statute, we see the question posed by (a)(4) in such proceedings to be whether testing offers a reasonable possibility of securing sound DNA results from material for which the usual trial demands for chain of custody can be met. This may or may not in a given case prove to make precisely the same demand for authentication as that of admissibility at trial. And of course there may be overlap in the two demands of (a)(4), when for example a break in the chain of custody presents an insurmountable risk of spoilation—alteration material to DNA testing.

The court then concluded that the record did not support a finding of a break in the chain of custody. The local police retrieved the clothing minutes after the robbery, and turned it over to the FBI within a few days. From that point on, "there is no evidence that the items ever left the custody of the FBI or federal prosecutors." And that had important implications for Fasano's burden on this point:

After trial and before sentencing defense counsel obtained permission to reenact the robbery with use of the physical evidence including the shirt, hard hat and glasses but the items could not be located. The district court refused to grant a motion for new trial resting on this inability of the government to locate this evidence. Some time later the government found a paper bag with all the physical evidence in a closet next to the office of the government prosecutor in the case, who had in the meanwhile retired from service. Government had this evidence in its possession within hours of the robbery and it remained there. That it lay quiet in a paper bag in a court house closet may suggest an unwarranted casualness but that it was unseen, forgotten, and untouched is of no moment here. At least there is no evidence one way or the other whether this is so and we cannot place upon the defendant the burden of proving its history while it is held in government custody. To do so would create an entrance gate so difficult to enter as to frustrate the core objective of the statute.

As to the second component of (a)(4)—let's call it the adequate preservation requirement—the district court found no indication that the clothing had been protected from contamination, and concluded that "every government agent who handled the DNA be identified to assure that they 'would provide DNA samples in order to isolate them as potential sources of DNA contamination.'" The court of appeals acknowledged the multiple-handlers problem as a relevant concern, but pointed to expert testimony that "'mixtures [of DNA] have made interpretation impossible in only a narrow set of cases.'" "Any implicit contrary finding by the district court is clearly erroneous."

The court of appeals then turned to the requirement of subsection (a)(8) that the evidence produced by testing "support the theory of defense" and "raise a reasonable probability that that the applicant did not commit the offense." At trial, Fasano had "attacked the reliability of the eyewitness testimony and pointed the finger at" some guy who had been staying with Fasano's brother in Fasano's old room. Fasano also argued that although his "finger prints were on the demand note, the paper on which the demand note was written came from his old room."

The question here is whether testing may produce new material evidence that would raise a reasonable probability that the applicant did not commit the offense. The district court thought not, based on the fingerprints on the demand note and the eyewitness testimony. There is no question but that the conviction is well supported by evidence as we concluded in affirming Fasano’s conviction. If however testing does not find Fasano’s DNA on the clothing and glasses but finds the DNA of Hughes the strong case evaporates; here the strength of the evidence by no means makes fanciful a conclusion that there is a reasonable probability that Fasano was not the robber. That is, unless we are to refuse to accept the weakness of eyewitness testimony, a reality that DNA testing has forced upon the legal community. There are myriad possibilities of outcomes from testing. We need not puzzle over their range. Nor do we now address the power of the results of testing. These are fact specific cases and Fasano has brought himself within the reach of the Innocence Protection Act and the tests must be ordered.

The deficiencies of forensic science have now reached popular consciousness, as evidenced by this feature article in the August 2009 issue of Popular Mechanics. As the article explains, not only are "America’s forensic labs . . . overburdened, understaffed and under intense pressure from prosecutors to produce results[,]" but

criminal forensics has a deeper problem of basic validity. Bite marks, blood-splatter patterns, ballistics, and hair, fiber and handwriting analysis sound compelling in the courtroom, but much of the “science” behind forensic science rests on surprisingly shaky foundations. Many well-established forms of evidence are the product of highly subjective analysis by people with minimal credentials—according to the American Society of Crime Laboratory Directors, no advanced degree is required for a career in forensics. And even the most experienced and respected professionals can come to inaccurate conclusions, because the body of research behind the majority of the forensic sciences is incomplete, and the established methodologies are often inexact. “There is no scientific foundation for it,” says Arizona State University law professor Michael Saks. “As you begin to unpack it you find it’s a lot of loosey-goosey stuff.”